Appeal No. 1999-2107 Page 11
Application No. 08/926,299
we will not sustain this rejection. It is noteworthy in this regard to recognize that the
objective of the Cohen invention recited in claim 6 is to provide an inflatable means in the
shoe upper to tighten the grip of the laced shoe upon the wearer’s foot, which would
appear to preclude its being placed in the shoe sole.
Claim 35 adds to claim 33 the additional requirement that the pad be in the sole of
the shoe, and therefore avoids the category in issue on the same basis as claim 33, plus
the location of the pad. The rejection is not sustained.
Independent claims 43 and 48 also require that the pump be in the sole of the shoe,
which leads to the conclusion that they are not directed to the same or substantially the
same subject matter as Cohen’s claim 6, on the basis of the reasoning expressed above.
We will not sustain this rejection of claims 43 and 48.
Claim 34 reads as follows:
Apparatus for protecting feet, comprising:
a tennis type shoe suitable for activities that include running;
inflatable pad means for providing cushioning protection against impact and shock
attached to said tennis type shoe; and
inflation means attached to a shoe upper in fluid communication with the pad
means for permitting a wearer to alter fluid content within the pad while said
shoe is worn.
The only argument presented by the appellant is that this claim is not directed to the same
or substantially the same invention as Cohen’s claim 6 because the phrase “inflatable pad
means for providing cushioning protection against impact and shock” is a means-plus-
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